Access to confidential materials from related cases

Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.

25. In support of their second ground of appeal, the Appellants submit that the Referral Bench “misconstrued” the Defence’s argument that they needed access to findings and evidence from other proceedings before the International Tribunal “arising out of the same alleged criminal enterprise” since they are crucial for the preparation of their defence; they claim that if their case is referred to BiH they will have no access to such materials. [1] First, the Appeals Chamber notes that this argument is not relevant to the present ground of appeal and that no reference to the Appellants’ submissions before the Referral Bench on this issue is provided. If this issue was not raised before the Referral Bench, the Appellants cannot claim that their argument was “misconstrued” or that the Referral Bench failed to address a matter which was not brought before it, thereby committing an error of law or fact. Second, pursuant to Rule 11bis of the Rules, the Referral Bench was not required to consider the Appellants need to access materials from related proceedings before the International Tribunal (for the preparation of their defence) when reaching a determination concerning the assessment of the gravity of the crimes and the level of responsibility of the Appellants. Therefore, the Appellants have failed to show that the Referral Bench erred in law. [W]ith respect to access to confidential materials from related cases before the International Tribunal, defence counsel in a proceeding in BiH, like the BiH Prosecutor, may request that the Prosecutor of the International Tribunal applies to vary protective measures under Rule 75 of the Rules.[2] Thus, the relevant parties to the proceeding in the national jurisdiction – both the Prosecutor and the Appellants – are on equal footing in terms of their ability to gain access to confidential materials from other International Tribunal cases.[3]

[1] Ibid., para. 38.

[2] See Decision on Registrar’s Submission on a Request from the Office of the Chief Prosecutor of Bosnia and Herzegovina pursuant to Rule 33(B), IT-05-8-Misc 2 (6 April 2005). 

[3] Stanković Rule 11bis Appeal Decision [Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005], para. 24; Janković Rule 11bis Appeal Decision [Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005], para. 51.

Download full document
ICTR Rule Rule 11bis ICTY Rule Rule 11bis